EXHIBIT 10.44
FIRST AMENDED AND RESTATED PARENT
GUARANTY
THIS FIRST AMENDED AND RESTATED
PARENT GUARANTY (this
“Guaranty” ) is made on December 31, 2004 by
CMGI, Inc., a Delaware corporation (the
“Guarantor” ), to and for the benefit of LaSalle
Bank National Association as agent for the Lenders (as defined
below) (herein, in such capacity, called the “Agent
”).
WHEREAS , pursuant to that certain First Amended and
Restated Loan and Security Agreement of even date herewith (the
“Loan Agreement” and, together with all other
documents and instruments executed or created in connection
therewith, the “Loan Documents” ) among the
Agent, the lenders party thereto (the “Lenders”
), ModusLink Corporation, a Delaware corporation (
“ModusLink” ), SalesLink LLC, a Delaware limited
liability company and SalesLink Mexico Holding Corp., a Delaware
corporation (together with ModusLink, the
“Borrowers” ), the Lenders have agreed to make
available to the Borrowers a revolving credit facility in the
amount of $30,000,000 (the “Loan” ) and make
other financial accommodations subject to the terms and conditions
set forth in the Loan Agreement;
WHEREAS , the Loan is evidenced by (i) a certain First
Amended and Restated Revolving Credit Note executed by Borrowers in
the principal amount of $20,000,000 dated as of the date hereof and
made payable to Agent and (ii) a certain First Amended and Restated
Revolving Credit Note executed by Borrowers in the principal amount
of $10,000,000 dated as of the date hereof and made payable to
Citizen’s Bank of Massachusetts (collectively, the
“Notes” ). The Notes are dated as of the date
hereof and are made by Borrowers payable to the order of the
Lenders;
WHEREAS , Guarantor, is the owner of 100% of
ModusLink’s stock, and will therefor benefit from the
Loan;
WHEREAS , the Agent and Lenders are requiring Guarantor
to execute and deliver this Guaranty (i) in order to secure the
prompt and complete payment, observance and performance of all of
the obligations of the Borrowers under the Loan Agreement (the
“Obligations” ) and (ii) as a condition
precedent to the Loan Agreement; and
WHEREAS , the parties hereto agree that this Guaranty
shall be a continuation of that certain Parent Guaranty executed by
Guarantor in favor of Agent and the Lenders dated as of July 31,
2004.
NOW, THEREFORE
, in consideration of the foregoing
promises and for the purpose of inducing the Lenders to make the
Loan, Guarantor hereby agrees as follows:
1. Definitions . Capitalized
terms used but not defined herein shall have the meaning ascribed
to them in the Loan Agreement.
2. Guaranty of Payment and
Performance . Guarantor unconditionally, absolutely and
irrevocably guarantees, without limitation, for the benefit of the
Lenders and each and every
present and future holder or holders of the
Notes, or assignee or assignees of the Loan Documents, the due,
punctual and full payment of the Loan, the interest thereon and all
other monies due or which may become due thereunder or under the
Loan Documents, whether according to the present terms thereof or
at any earlier or accelerated date or dates as provided therein, or
pursuant to any extensions of time or to any change or changes in
the terms, covenants or conditions thereof or at any time hereafter
made or granted, and the complete performance in full of all
Obligations of the Borrowers under the Loan Documents. The guaranty
set forth in this paragraph 2 is a guaranty of payment and not of
collection. Notwithstanding anything to the contrary herein,
Guarantor shall be permitted to assert any defenses whatsoever that
the Borrowers may or might have to the performance or observance of
any of the covenants or conditions contained in the Notes or Loan
Documents.
3. Representations and
Warranties . Guarantor represents and warrants to the Lenders
as follows, and hereby acknowledges that the Lenders intend to make
the Loan in reliance thereon:
(a) Guarantor has the requisite
power, authority, capacity and legal right to execute, deliver and
perform this Guaranty and all other documents required to be
executed and delivered hereunder. This Guaranty and all other
documents required to be executed and delivered hereunder, when
executed and delivered, will constitute legal, valid and binding
obligations of Guarantor enforceable against Guarantor in
accordance with their terms;
(b) Guarantor is not in default, and
no event has occurred which with the passage of time and/or the
giving of notice will constitute a default, under any agreement to
which Guarantor is a party, the effect of which will impair
performance by Guarantor of its obligations pursuant to and as
contemplated by the terms of this Guaranty, and neither the
execution and delivery of this Guaranty nor compliance with the
terms and provisions hereof will, violate any applicable law, rule,
regulation, judgment, decree or order, or will materially conflict
or will be materially inconsistent with, or will result in any
material breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, instrument, document, agreement or
contract of any kind that creates, represents, evidences or
provides for any lien, charge or encumbrance upon any of the
property or assets of Guarantor, or any other indenture, mortgage,
deed of trust, instrument, document, agreement or contract of any
kind to which Guarantor is a party or by which Guarantor or the
property of Guarantor may be subject, or in the event of any such
conflict, the required consent or waiver of the other party or
parties thereto has been validly granted, is in full force and
effect, is valid and sufficient therefor and has been approved by
the Agent;
(c) There is not any litigation,
arbitration, governmental or administrative proceedings, actions,
examinations, claims or demands pending or threatened that will
adversely and materially affect performance by Guarantor of its
obligations pursuant to and as contemplated by the terms and
provisions of this Guaranty;
2
(d) Guarantor has taken all
necessary corporate action to ensure that the execution, delivery
and performance of this Guaranty are duly authorized;
(e) The execution, delivery and
performance of this Guaranty by Guarantor and compliance with the
provisions hereof by Guarantor will not violate any provision of
Guarantor’s Certificate of Incorporation or By-laws;
and
(f) Neither this Guaranty nor any
statement or certification as to facts heretofore furnished or
required herein to be furnished to the Agent by Guarantor contains
any inaccuracy or untruth in any representation, covenant or
warranty or omits to state a fact material to this
Guaranty.
4. Covenants . In furtherance
of the guarantees, representations and warranties described above
in paragraphs 2 and 3, and not in any way in limitation thereof,
Guarantor hereby acknowledges, covenants and agrees
that:
(a) any indebtedness of the
Borrowers now or hereafter owing, together with any interest
thereon, to Guarantor, is hereby subordinated to the indebtedness
of the Borrowers to the Lenders under the Loan Documents, and such
indebtedness of the Borrowers to Guarantor in the event of a
Default hereunder shall be collected, enforced and received by
Guarantor in trust for the benefit of the Lenders, and shall be
paid over to Agent for its benefit and for the ratable benefit of
the Lenders on account of the indebtedness of the Borrowers to the
Lenders, but without impairing or affecting in any manner the
liability of Guarantor under the other provisions of this
Guaranty;
(b) any lien, security interest or
charge on the Collateral, all rights therein and thereto or on the
revenue and income to be realized therefrom, which Guarantor may
now have or hereinafter obtain as security for any loans, advances
or costs shall be, and such lien, security interest or charge
hereby is, subordinated to all liens and security interests
heretofore, now or hereafter granted by the Borrowers to the
Lenders under the Loan Documents;
(c) until the Notes are repaid in
full, no payment by Guarantor under any provision of this Guaranty
shall entitle Guarantor, by subrogation to the rights of the
Lenders or otherwise, to (i) any payment by the Borrowers or (ii)
any payment from or rights in any commitments or indemnities or
other security held by or for the benefit of the Lenders in
connection with the Loan;
(d) the liability of Guarantor
hereunder shall in no way be affected, diminished or released by
any extension of time or forbearance that may be granted by the
Agent to the Borrowers or to Guarantor or any waiver by the Agent
under the Loan Documents or by reason of any change or modification
in any of said instruments or by
